Gwanda Rural District Council V Motsamai (Pvt) LTD T/a TULI Limpompo AND THE Officer-In-Charge, ZRP Gwanda AND National Parks AND Wildlife Management Authority

### Preamble
1
HB 46-19
HC 2460/18
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GWANDA RURAL DISTRICT COUNCIL

versus

MOTSAMAI (PVT) LTD t/a TULI LIMPOMPO

and

THE OFFICER-IN-CHARGE, ZRP GWANDA

and

NATIONAL PARKS AND WILDLIFE

MANAGEMENT AUTHORITY

HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO 18 SEPTEMBER 2018 AND 4 APRIL 2019

Urgent Chamber Application

L. Nkomo for applicant

F Museta for 1st respondent

L Dube for 2nd & 3rd respondents

MABHIKWA J:	This matter came as an urgent chamber application.  In a 66 page application, applicant in short/simpler terms averred that it and 1st respondent entered into a Joint Venture Agreement (J.V.A.) for the purpose of operating a safari business among other objectives.

Applicant further averred that first respondent breached the terms of the Joint Venture Agreement and was given due written notice of intention to terminate the agreement should it (respondent) fail, refuse or neglect to remedy the breach. The breach was not remedied and the Joint Venture Agreement was terminated.  Despite termination, 1st respondent allegedly continued to be in occupation of the applicant’s ranch and conducting hunts among other unlawful activities and went further to connive with a purported “Trust” comprising some members of the public to behave as if they owned the ranch” and attempting to elbow out the applicant from its ranch.

Applicant then prayed for an interdict and other ancillary relief pending the referral of the matter to arbitration as provided for in the Joint Venture Agreement.

The matter was in a way overtaken by events in that the application centred mostly on hunts that were seemingly intended to be carried out by 1st respondent on 3 to 8 September 2018.  The application was itself filed with this Honourable Court on 11 September 2018.  The notice of opposition was filed on 18 September 2018.  The application was hotly contested to the extent that after a hearing in chambers the parties felt that there was need to file written heads of argument to buttress whatever oral submission they had made.  The court allowed them to do so.

The 1st respondent filed a notice of opposition largely made of points in limine.  Among other points, 1st respondent contended that the application was improperly before the court in that:

a)	Applicant was not properly authorized to terminate the Joint Venture Agreement.

b)	The decision to terminate the Joint Venture Agreement was made by a council meeting which was in breach of a ministerial directive not to hold such meetings without the Ministry’s written consent.

c)	The said full council meeting was in any event not fully constituted and violated voting procedures.

d)	The deponent to applicant’s founding affidavit (Rounie Sibanda), was not authorized to represent the applicant and that his signing of the affidavit had not been properly sanctioned.

e)	1st respondent also contend that the dispute is already before the court under case number HC 2460/18.

f)	1st respondent also contended that the urgency is self-created, the need to act having arisen in May 2018, when the hunts complained of started.

In my view, the issue to be determined in such an application is whether in the overall

circumstances of the matter, applicant has shown a prima facie case and whether the requirements for the granting of a temporary interdict have been met.

From the onset, I wish to state that firstly the parties appear to accuse each other of

breaching the contract.  In essence each accuses the other of breaching the Joint Venture Agreement.  Secondly, the parties each claim to have the mandate to manage the ranch in question, Doddieburn Mayole Farm.  Thirdly, whilst applicant avers that the 1st respondent has illegally carried out hunts without submitting TR2 forms for signing by the applicant first as required by the Joint Venture Agreement, the 1st respondent seems to argue that at some stage, applicant refused to sign the TR2 forms.  1st respondent then appears to have substituted the applicant with the National Parks and Wildlife authority for the signing of the said forms.  It is not clear whether such substitution is in terms of the Joint Venture Agreement or of any Law.  In fact respondent even argues in heads of argument that the National Parks and Wildlife department is the regulatory authority and that any hunts allowed or sanctioned by it cannot be said to be illegal.

I believe though that first respondent was simply missing the point in that regard.  In my view, the National Parks and Wildlife Management authority may sanction a hunt having satisfied themselves that in terms of animal population and hunting quotas, the hunt can be sanctioned yet the same hunt may be illegal if it is done outside the terms of the Joint Venture Agreement.  In other words, there is disagreement between the parties as to whether a hunt is legal because it is sanctioned by the National Parks and Wildlife Management Authority or because it is done in terms of The Joint Venture Agreement.  Firstly, whilst the applicant averred that it had no alternative remedy other than the temporary interdict prayed for, 1st respondent argued again that the National Parks and Wildlife authority had at some stage called the parties to a “hearing to address the issue” but applicant decided not to attend.  The 1st respondent in this submission actually refers to the Parks and Wildlife as “the” Regulatory Authority.

As already stated above, 1st respondent does not however point to a specific clause in the Joint Venture Agreement or a specific legal provision that makes the Parks and Wildlife department the regulatory authority apart from its general statutory mandate.

It is incorrect in my view for 1st respondent to circumvent the Joint Venture Agreement, because of a dispute, by enlisting   the services of the National Parks and Wildlife authority because it is a government department mandated to deal with wildlife.

In casu, it (NPW) department did not have the legal remedial force that first respondent seems to argue it had.

I need not state in too many words that 1st respondent’s submissions that “the ministerial directive” although administrative in nature has the status of “LAW” was clearly weird and wrong.

Having looked at the overall circumstances of this matter from the papers and after hearing both counsel, I am very convinced that the dispute boils down to the issue of the hunts which applicant claims they are illegal as they are not done in terms of the Joint Venture Agreement.  On the other hand, 1st respondent does not deny the occurrence of such hunts but seems to argue that they are sanctioned by the National Parks and Wildlife and therefore legal.

Clearly, points in limine and other arguments have been raised, which tend to show that there are disputed facts in this matter.  Also, 1st respondent has argued that the hunts complained of were taking place as far back as May 2018 and therefore as at September 2018, the urgency had been overtaken by events and had become self-created.

I am indeed cognisant of all these legal requirements relating to urgent chamber applications.

I take note however, the fact that even over the past few months, the dispute between the parties remains unsolved either by case number HC 2460/18 or by an arbitration process in terms of clause 11 of the parties Joint Venture Agreement.  Meanwhile, if hunts continue whilst the argument rages on as to whether such hunts are legal or illegal and whether applicant is getting its share or not, the court surely may have to temporarily restore the status quo.  In doing so, the court puts the two parties in a position where none has an unfair advantage over the other in respect of the dispute until the matter is properly resolved.

I notice further that applicant’s application is premised on Article 5 as read with article 9 of the Model Law.  Article 9 empowers the court to grant interim relief such as an interdict or other interim order in the event that a party to an agreement which is subject to arbitration in terms of the act requests the same (Article 9 (2) (c) of the Model Law).   Applicant stated that a letter has been written to the President of the Law Society of Zimbabwe requesting an appointment of an arbitral tribunal in terms of clause 11 of the Joint Venture Agreement.  The arbitral tribunal is yet to be appointed.  First respondent contends that the court should guard against granting relief pending alleged intended arbitration proceedings that may eventually never take place.  However, Article 9 (3) (a) of the Model Law provides that the court shall not grant an interdict unless the court is dealing with a matter when the arbitral tribunal has not yet been appointed and the matter is urgent.  In the circumstances therefore, the court would be within its mandate and discretion to grant interim relief.

As already stated above, the guiding principle is whether the applicant has shown, and the judge is satisfied that the papers establish a prima facie case for the granting of the interim relief sought.

See (a)	Kuvarega v Registrar General -1998 (i) ZLR 188

(b) MacNail and Another v Haskins HB 99-2003

See also Order 32 rule 246 (2) of the High Court Rules, 1971.

First respondent admits in its heads of argument that Article 5 as read with Article 9 of the Model Law schedule to the Arbitration Act entitles applicant to engage this Honourable court for interim relief pendente lite and that it (1st respondent) cannot argue against the provisions of the Model Law.  It only urges the court to consider whether this relief is founded on factual merit and whether it is necessary for the court to impose “such a strong measure under the circumstances”.  This in my view is a matter of moral or value judgment.

It is clear that the 2nd and 3rd respondents, who by the very nature of their offices are usually cited nominally for administrative purposes, perhaps did not file any papers intending to accept to be bound by whatever decision of the court.

I am satisfied that in the overall circumstances of this case, the applicant has made a prima facie case for the granting of the interim relief sought.  I am also satisfied that the hunts at Doddieburn-Mayole Farm, whether illegal as argued by applicant, or sanctioned by 3rd respondent as argued by 1st respondent, have to be temporarily halted.  The court has to restore the status quo pending finalization of the matter either by way of an arbitration tribunal or finalization of case number HC 2460/18 whichever occurs first.  In any event, neither party will suffer any prejudice or harm if the hunting of animals is temporarily halted pending the said litigation.

Consequently, the applicant is granted in the following interim relief.

Interim relief

Pending the determination of this matter, applicant is granted the following relief:

1.	That the 1st respondent, and all those claiming authority through it, or acting on its behalf, be and are hereby interdicted from carrying out hunting activities at Doddieburn–Manyole Farm, without the knowledge and written consent of the applicant.

Calderwood, Bryce-Hendrie and Partners, applicant’s legal practitioners

Messrs G N Mlotshwa and Company, 1st respondent’s legal practitioners

Civil Division, Attorney General’s Office, 2nd & 3rd respondents’ legal practitioners